Judge rules against first-degree Mehserle verdict

The judge in the BART shooting trial made a critical ruling Wednesday that may have a dramatic effect on the outcome.

Johannes Mehserle will not face a first-degree murder charge. The judge said there is not enough evidence to show that the shooting death of Oscar Grant was premeditated, therefore, jurors will be instructed not to consider first-degree murder.

In tossing out the first-degree murder possibility, the judge opened the door for the jury to consider less-serious charges. The range, in terms of conviction in the charges, could mean anywhere from decades behind bars to just probation.

If convicted, Mehserle would be the first police officer in California to be found guilty of murder for an on-duty shooting and he could go to jail for a very long time.

Judge Robert Perry said the 12 jurors deciding the former BART officer's fate can consider charges as serious as second degree murder down to involuntary manslaughter. Second-degree murder carries a sentence of 15 years to life. A gun enhancement could add 25 years, making it 40 years to life.

Voluntary manslaughter would make it 3 to 11 years. Involuntary manslaughter would make it 2 to 4 years. As for the minimum, if Mehserle is convicted of involuntary manslaughter, he could be sentenced to probation.

"To me, for involuntary manslaughter to become the verdict, it's saying to the public and the community and the world, that an officer can kill and yet just get probation," said Grant's uncle Cephus Johnson.

The judge rejected defense attorney Michael Rains' motion to drop all charges based on a lack of evidence. Rains also wanted jurors to consider just the second degree murder charge or an acquittal, an all or nothing tactic. That too was denied.

"For two reasons," he said. "First of all, that's what best fits his conduct. And secondly, if there are jurors on either extreme, for murder or acquittal, this is a good compromise that would bring all 12 jurors around to agreeing on a verdict."

As the verdict now seems closer than ever, Grant's family is pleading for peace.

"We also recognize that there are elements within our community that are so angry to the injustice that they're willing to take laws into their own hands," Johnson said. "We don't condone that. We don't want no one hurt."

Many Bay Area communities are preparing for the verdict. Los Angeles is getting ready as well. Police there are expecting protests on the day of the verdict and may end up shutting down streets in the busy downtown corridor outside the courthouse.

There is concern in Oakland as well, that reaction to a verdict in the Mehserle case could turn destructive or even violent. Mayor Ron Dellums has already issued an alert to the community and on Wednesday a group of black council members and ministers issued an open letter asking people to "work with us to shut down anyone who would engage in destructive behavior in our community."

"We are also asking that you work with us as we continue to demand justice for Oscar," the letter continued.

On Thursday, lawyers will make their closing arguments. The judge could also hand instructions over to the jury as early as Thursday or Friday. Judge Perry Wednesday expressed concern about the complicated task the jury will have before them in deciding the case. The deliberation instructions themselvse are at least 12 pages long.